Zhou v Core Minerals Geologists Limited & 3 Others (Miscellaneous Application 193 of 2022) [2023] UGCommC 226 (14 March 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## IcoMMERCIAL DMSIONI

# MISCELLENEOUS APPLICATION NO. I93 OR 2022 (ARTSING FROM CML SUIT NO.91s OF 2018) ZHOU QUINGYOU:::::::::::::::::::::::::::::::::::::::::3:::::::::::: APPLICANT VERSUS

## CORE MINERALS GEOLOGISTS LTD & 3 OTHERS:::: RESPONDENTS BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI RULING

This application was brought under Section 98 of the Civil Procedure Act and Order 9 Rule 23 and 29 of the Civil Procedure Rules seeking for orders that the order dismissing Civil Suit No. 915 of 2018 be set aside and the costs of the application be provided for.

The Application was supported by the affidavit of Bonny Kolokolo Ntanda, stating out the grounds of the Application. The Respondent filed their affidavit in reply opposing the application. The Applicants then filed an affidavit in rejoinder.

#### REPRESENTATION

During the hearing, the Applicant was represented by IWs Kampala Associated Advocates and the Respondents were represented by M/s Obed Mwebesa & Associated Advocates.

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#### SUBMISSIONS

Counsel for the Applicant submitted that the Applicant has sufficient cause for non-appearance on 3rd March 2023 when the matter came up for scheduling as Counsel was caught up in security checks at the Court entrance, and the deponent of the affidavit, a legal assistant at the law firm was instructed to hold fort as Counsel makes his way but he did not have audience with the Court' hence the dismissal. He added that the Plaintiff had at all times taken the necessary steps to prosecute the matter as they had already filed their Joint Scheduling Memorandum on I't March 2022,prior to the scheduling conference which had been fixed for 3'd March 2022 when the matter was dismissed.

Counsel cited case law which defines sufficient cause, and added that under Section 98 of the Civil Procedure Act Court had powers to make such orders as may be necessary for the ends ofjustice; and that under Order 9 Rule 23 ofthe Civil Procedure Rules, Court has power to set aside dismissal and sufficient cause being shown. That it was a mistake of Counsel that should not be imputed on the Applicant.

In opposition of the application, Counsel for the Respondents submitted that contents of paragraph 5 of the deponent's affidavit in relation to Counsel being caught up in security checks is hearsay because the statement is not made by the person it refers to. He added that paragraph 6 about Counsel being on his way on the stairs, is a falsehood, and that the law is clear that affidavits founded on hearsay and obvious falsehoods must fail. He quoted the ruling of the leamed Lady Justice Arach Amoko in the case of Kiiryo Grace Vl/anzola V Daudi Migereko & Anothet Court of Appeal Election Reference Appeal No, 39 of 2012 where she held that:

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" .... ...a litigant should not be penalised by mistake of his counsel. This only benefits litigants if the mistake of counsel amount to an eruor ofjudgement. "

Counsel concluded that the Applicant has not been diligent in following up on his case and the primary duty falls on the Applicant to ensure that his case is determined. That the Applicant was not in Court and the affidavit did not explain where he was on the day the suit was dismissed, therefore the Applicant has not shown sufficient reason why he did not appear in Court when the suit was called for hearing. He prayed that the application be dismissed with costs.

In rejoinder, Counsel for the Applicant submitted that the deponent stated that he was in touch with Counsel Mwebesa, with whom he had gone to Court that day, and that the facts he stated in paragraphs 5 and 6 of his affidavit are within his knowledge, and not hearsay. She also submitted that the Applicant had always been diligent in pursuing the matter as Counsel was in Court at all times except for 3'd March 2022 when he delayed inadvertently and that it should not warrant dismissal of the Applicant's case. She reiterated that the Applicant had met the conditions for reinstatement and prayed that the application be allowed.

### RULING

I have carefully perused the Application together with the affidavits in support, reply and rejoinder to this Application; as well as listened to the submissions of both Counsel for the Applicant and the Respondents and hold as follows.

In an application for setting aside a dismissal of a suit under Order 9 Rules 23 and 29 of the Civil Procedure Rules as this, the Plaintiff must satisfu Court that he was prevented from appearing in Court by sufficient cause.

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### Order 9 Rules 23 provides that:

"Where a suit is wholly or partly dismissed under Rule 22 of this Order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he or she may apply for an order to set the dismissal aside, and, if he or she satisfies the court that there was suficient cause for nonapPearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal, upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. "

In the instant case, Civil Suit No. 915 of 2018 was dismissed pursuant to Order 9 Rule 22 ofthe Civil Procedure Rules for non- appearance ofthe Plaintiff. The issue for determination, therefore, is whether or not the Applicant has sufficient cause for setting aside the dismissal.

The meaning of 'sfficient cause' was explained in the case of Bishop Jacinto Kibuuka V The Uganda Calholic Lawyers Society & 2 Others Miscellaneous Applicalion No. 696 of 2018 which was cited by Counsel for the Applicant. It was held:

".... sufficient cause means that party had not acted in a negligent manner or there was want of bona fide on its part in view of the facts and circumstances of a case or the party cannot be alleged to have been not acting diligently or remaining inactive. "

It is not disputed that on 3'd March 2022 when the matter was dismissed, neither Counsel in personal conduct of this case nor the Applicant were present, although the deponent, a legal assistant from the same law from was present but he did not have audience with the Court. From the affidavit in support of the Application, the deponent states that he tried to inform Court that Counsel was on the stairs, but I

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must note that this does not relieve Counsel from being negligent because it is his duty to be in Court when the matter is called. The Security checks at the court premises or the parking issue is not a new thing and Counsel ought to have considered that when leaving for Court that moming. I find that this was negligent on the part of Counsel.

Counsel for the Applicant cited case law and submitted that mistake of Counsel should not be imputed on the litigant and I entirely agree with her. However, it is also trite law and as rightly pointed out by Counsel for the Respondent that only mistakes which amount to an error ofjudgment are not imputed on the litigant (See the Kiirya Grace Wanzala cose (supra). In this case, failure to attend Court in time does not amount to a mistake that can benefit the litigant.

However, this Court has inherent powers under Section 98 of the Civil Procedure Act to make such orders as may be necessary for the ends ofjustice or to prevent abuse ofthe process of the court.

Considering the circumstances of this case, one being that 3'd March 2022 when the matter was dismissed was the only day when Counsel for the Applicant was absent in Court and also that the legal assistant was in Court to inform of Counsel's delay although he did not have audience, and finally that this application was filed immediately after the dismissal without delay on the same day all pointing to the Applicant's interest in pursuing their case, I find that this is a proper case where this Court should invoke its inherent powers under Section 98 of the Civil Procedure Act above to make an order to set aside the dismissal to allow Civil Suit No. 91 5 of 20 I 8 to proceed so that the ends of justice are met.

In addition, the administration ofjustice requires that the substance of all disputes should be investigated and the cases be decided on their merits; and that errors and

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lapses should not necessarily debar a litigant from pursuing his rights (See Essaii and Ors V. Solanki (1968) E. A 218).

Whereas, Counsel for the Respondent argues that the affidavit in support does not explain where the Applicant was and that he had not been appearing, Order 3 Rule I of the Civil Procedure Rules states that appearances may be in person, by recognised agent or advocate. In this case, the advocate had been appearing for the Applicant, just like in this Application, therefore, the Applicant's personal absence should not arise if his advocate is present. The issue still stands as to whether the Applicant was prevented by sufficient cause from appearing.

Pursuant to Section 98 afore-mentioned, this Application is allowed, the order dismissing Civil Suit No. 915 of 2018 is hereby set aside and the suit is reinstated. Civil Suit No. 915 of 2018 is fixed for 3'd May 2023 for a scheduling conference.

Costs shall be in the cause

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HON. LADY JUSTICE ANNA B. MUGENYI DATED l.s..l.v-o.vs